Bhupinder
Singh and Roshan Lal, the two appellants before us, and four others were tried
by the Additional Sessions Judge, Yamuna Nagar for offences punishable under
Sections 148, 302/149, 332/189 and 506/149 [PC. The trial ended in convictions
of the appellant Roshan Lal under Sections 302 and 332/34 IPC, the appellant Bhupinder
Singh and two others under Sections 302/34 and 332/34 IPC and acquittal of the
four convictions of the two appellants but acquitted the others. Hence this
appeal at the instance of the two appellants after obtaining special leave.

2.
Shorn of details the prosecution case is as under :

(a) On
March 12, 1990, Ghansham Dasa (P.W.7), a resident
of Ambala Cantonment, had come to Yamuna Nagar to meet his in- laws. In that
afternoon he, along with his two sisters-in law and wife of his brother-in-law
has gone to see a movie was being screened the six accused, who were occupying
seats in the row behind them, started misbehaving with ladies accompanying
P.W.7 Being exasperated P.W.7 approached Som Nath (P.W.6), manager of the
Cinema Accompanied by Head Constable (HC) Ram Het (P.W.G.), who was then on
duty at that place, P.W.6 went inside the hall and advised the accused to
behave properly. The respondent to such advice for the time being but after the
interval again started cutting jokes with those ladies. On getting that
information P.W.G. summoned Head Constable Balbir Singh (the deceased), who was
then on duty at the nearby Fountain Chowk, and both of them went inside the
hall and brought all the six accused out the two Head Constables then took them
to task for their misbehavior. Enraged thereby some of the accrued persons
started hurling abuses towards them while others including the two appellants
tried to run away. The Head Constables and the Manager of the Cinema Hall then
chased them. While being so chased the appellant Bhupinder Singh jumped into a
tanker lorry (bearing registration No. P(G 4869) which was parked outside the
main gate of the Cinema hall and brought out a wooden balli (Ext. P1/A) from
its tool box, Roshan Lal, the other appellant, then snatched that balli from Bhupinder
Singh and inflicted a blow with the same on the head of H.C. Balbir Singh,
while some of the other accused persons including Bhupinder Singh, started
assaulting H.C. Balbir Singh with kicks and blows.

However,
P.W.6 along with P.W.8 and Mahesh Kumar, booking clerk of the Cinema, succeeded
in apprehending both the appellants while the other accused persons managed to
flee away. At the time of their apprehension the two in the meanwhile a minor
injuries in the scuffle. In the meanwhile a police flying jeep arrived there in
which H.C. Dalbir Singh, who was seriously injured, was shifted to CivilHospital, Yamuna Nagar.

b) On
receipt of a radio message at or about 6.45 P.M., inspector Raghbir Sahal
(P.W.11), who was then on patrol duty, reached the scene of occurrence where
the two appellants were produced before him P.W. 11 recorded the statement of
P.W.6 and forwarded the some to the police station for registration of a case.
He then took up investigation and formally arrested the two appellants and
seized the balli (Ext. P1/A), which was found lying there, and the torn shirt
of H.C. Ram was found lying there, and the torn shirt of H.C. Ram Het. He also
seized some blood stained earth from the spot. While at the place of occurrence
Raghbir Singh got information about the death of H.C. Dalbir Singh and
accordingly he want to the Civil Hospital and after holding inquest upon the
dead body of H.C. Balbir Singh, sent it for post mortem examination.

(c) A
term of decision including Dr. Akhilesh Narain (P.W.1) held autopsy upon the
dead body of H.C. Balbir Singh and found the following :

"A
stitched wound 1.1/2" long was present on left side of skull on temporal
region one inch below the parietal predominance. The wound was having two
stitches. There was a defused swelling, all around the wound in area of
2.1/2". On exploration, the wound was lacerated and was bone deep. On
further exploration, The doctors opined that the injustice were enter mortem
and sufficient to cause death in the ordinary course of nature. P.W.11 also got
the two appellants medically examined for the injuries found on their persons.
On completion of investigation he submitted charge sheet against the accused
persons.

3. The
appellants pleaded not guilty to the charges levelled against them; and in his
statement recorded under Section 313 Dr. P.C. appellant Roshan Lal stated as under
:

"
and Bhupinder Sing were seeing the movie and in the meantime light went off and
there was some confusion. The other persons who were seeing the movie began to
in and out of the hall. Balbir Singh raised hue and cry, the public objected to
it at which Ram Het and Balbir Singh began to beat the public. Somebody out of
the public hit Balbir Singh. We were later on implicated falsely in this case.
As we were having injuries on our person, to save their skin, the police has
concocted this story.

Ram Het
and Balbir Singh H.C. were also seeing the movie. This is a false case and the
witnesses are deposing falsely. I am innocent."

4. To
sustain the charges levelled against the appellants the prosecution examined 11
witnesses of whom H.C. Ram Het (P.W.8) detailed the entire prosecution story.
The trial Court found P.W.8 trustworthy and as, according to it, his evidence
stood corroborated by the evidence of Som Nath (P.W.6) and Ghansham Dass
(P.W.7), the medical evidence and the recovery of the balli at the place of
occurrence, accepted the case of the prosecution in preference to that of the defence.
The High Court concurred with all the finding of the trial Court so far as they
pointed to the guilt of the appellants.

5. We
have perused the judgments of the learned Courts below keeping in view that
evidence on record and our such exercise persuades us to unhesitatingly hold
that the concurrent findings of the learned Courts below are unexceptionable,
being based on proper appreciation of evidence and cogent and convincing
reasons.

6. It
was however contended by Mr. Sharma, the learned counsel for appellants, that
having regard to the admitted fact that both the appellants had injuries at the
time of their arrest, it was the bounden duty of the prosecution to explain how
they sustained those injuries and consequent upon their failure to do so the
learned Courts below ought not to have accepted the prosecution's version of
the incident. It appear that this contention was raised on behalf of the
appellants before the High Court also and it rejected the same with the
following observations :

"This
is not a case where it can be said that the injuries on the person of the
accused have remained unexplained. From the very inception, the prosecution
case was that it was during the scuffle at the time of occurrence that accused Roshan
Lal and Bhupinder Singh had received Single injuries. There is nothing
un-natural in this part of the prosecution case. It has come in the evidence
that the accused and their companions had tried to run away from the spot and
in that process, accused Roshan Lal and Bhupinder Singh were secured whereas
their other companions managed to escape. Both these accused can very well
receive the minor injuries while attempting to release themselves with a view
to run away. Both of them were infect medically examined by the police in which
regard copies of their MLRs have been proved as PT/1 and PW/1 respectively. The
perusal of those medico-legal reports would reveal that the injuries suffered
by them are all minor in nature and these can be received by them in the manner
as suggested by the prosecution." Since we are in complete agreement with
the above observations of the High Court the contention of Mr. Sharma in this
regard must be rejected.

7. It
was next contended by him that even if it was assumed that the entire
prosecution case was true still Bhupinder Singh could not be hell guilty for
injury caused by Roshan Lal on the head of Balbir Singh injury caused by Roshan
La on the heed of Balbir Singh with a balli with aid of Section 34 IPC for the
only allegation against him in this regard was that he took out the balli from
the tool box of a tanker. We do not find any substance in this contention also.
When the totality of the circumstances culminating in the death of Balbir Singh
is taken into account there cannot be any escape from the conclusion that Bhupinder
Singh shared a common intention with Roshan Lal for causing the death of Balbir
Singh. The evidence on record unmistakably proves that while discharging his
duties at the Cinema hall 11.C Ram Het (P.W.8) had asked the accused persons
not to misbehave with the ladies who were enjoying the movie. In spite of repeated
requests made by the manager of the Cinema Hall and the head Constables the
accused persons did not desist form behaving in an objectional manner. Then
again in discharge of his duties when he along with H.C. Dalbir Singh, whose
services be requisitioned, tried to apprehend the appellants, Bhupinder singh
jumped into the lorry tanker and brought out the wooden balli obviously to
assault the Head Constables. Therefore simply because he did assault the
deceased with the balli but Roshan Lal did after snatching it from him it
cannot be said that Bhupinder Singh was not a party thereto.

8. It
was lastly confounded by Mr. Sharma that in any view of the matter the offence
allegedly committed by the two appellants could not be said to be one under
Section 302 IPC. We are not impressed by this argument also having regard to
the circumstances preceding the assault, the weapon used, the situs of the
injury and the force with which the blow was inflicted, which is evident from
the nature and extent of the injuries described earlier.

9. For
the foregoing conclusions the appeal fails and the same is hereby dismissed the
appellant Bhupinder Singh, who is on balli, will now surrender to his bail
bonds to serve out his sentence.